Firing for failing drug test replaced with three-month suspension

The Newfoundland and Labrador Supreme Court has upheld the substitution of a three-month suspension for dismissal of a worker who failed a drug test due to over-the-counter CBD oil use, in large part because the employer’s drug and alcohol policy had conflicting provisions around the consequences for violating the policy.

“As in all termination cases, the burden is really heavy on an employer to prove that it has reasonable grounds for terminating an employee for violating a drug and alcohol policy,” says Brittany Keating, a lawyer at McInnes Cooper in St. John’s. “So any oversight or misstep by an employer is often used by an arbitrator to justify imposing a lesser penalty than termination.”

Hibernia Platform Employers’ Organization (HPEO) is an organization representing the various contractors who operate onboard the Hibernia Platform, an offshore oil production platform off the coast of Newfoundland and Labrador. The worker was an operations technician for the Hibernia Management Development Corporation, one of the members of HPEO. He worked on the Hibernia platform for 16 years.

In 2019, the worker developed colitis, which led to severe stomach issues. He was prescribed several medications, but they all had undesirable side effects. In November 2020, he was flown home by helicopter on an emergency basis due to a flare-up.

The worker’s doctor suggested he try CBD oil, which is derived from the non-psychoactive compound in cannabis. The worker obtained over-the-counter CBD oil that contained small amounts of THC, the psychoactive compound of cannabis.

Between Dec. 1 and Dec. 20, the worker consumed six bottles of CBD oil.

Worker failed secondary drug test

On Jan. 26, 2021, the worker underwent a routine drug and alcohol test as part of the recertification process. He filled out a form that asked him to list all medications and supplements used in the previous three months but omitted the CBD oil. He passed the point-of-collection test, which had a limit of 20 mg/ml for THC. However, he failed a secondary confirmation test that had a lower threshold of 15 mg/ml.

On Feb. 2, the worker met with the offshore installation manager and told him that he had taken CBD oil for his medical issues. The next day, the manager provided a letter stating that he would hold off on discipline pending a medical assessment.

The worker underwent a medical assessment that confirmed his medical condition. There was also no evidence of a substance dependency and the assessing doctor felt there were no safety concerns over the worker returning to work with random testing every six months for the next two years.

However, the manager didn’t see the assessment report and HPEO’s medical experts believed that CBD oil alone wouldn’t cause a positive test. On May 6, HPEO advised the worker that his employment was being terminated for violating the drug and alcohol policy and the collective agreement.

The worker grieved the termination and the arbitrator ordered HPEO to reinstate the worker with a three-month suspension serving as discipline. The arbitrator found that article 10 of the policy – outlining the consequences of a policy violation – conflicted with article 9, which covered disciplinary action and required HPEO to conduct an investigation before determining discipline. The arbitrator found that the fact that the manager didn’t see the assessment report declaring no safety concerns indicated that there was no meaningful investigation.

Conflicting provisions of policy

Article 9 of the policy stated that a violation “may result in disciplinary action up to and including termination of employment” but also stated that “an investigation will be conducted before disciplinary action is taken,” and the appropriate discipline “depends on the nature of the policy violation and the circumstances around it.”

Article 10 stated that HPEO would permanently remove a worker from the platform after a policy violation, but also stated that HPEO would consider them for a return to work if it was demonstrated that the worker was in compliance as soon as was reasonably practical.

The arbitrator determined that the ambiguity in the wording of the policy should be resolved in the worker’s favour, even though there was a technical breach. The three-month suspension would serve as deterrence of a future breach, the arbitrator said.

“The arbitrator acknowledged that the employer had an expression of its intention that there was zero tolerance towards drugs and alcohol use in the workplace, but a blanket zero-tolerance provision was not a realistic interpretation of the intention of both parties,” says Keating. “There was a conflict between the two provisions and the arbitrator sided in favour of an assessment of the nature of the violation and an investigation, rather than the zero-tolerance policy.”

Ambiguity in favour of employee

The arbitrator’s approach is common in circumstances where there is a conflict between provisions in a policy or agreement, adds Keating.

“Where there is a conflict in the interpretation of two articles, the contract is often read against the interests of the employer, as often the employer drafts the policy,” she says. “So where there is a conflict or ambiguity that cannot be resolved, arbitrators often apply the contra proferentem rule and read the provision in favour of the party who didn't draft the contract - which will be the employee, or the union in this case.”

HPEO sought judicial review of the decision.

The court noted that the standard of review was reasonableness, meaning that the decision should be acceptable and defensible with a discernably reasoned explanation.

As for the arbitrator’s findings, the court found that the policy’s wording and the circumstances were sufficiently analyzed and the arbitrator provided a reasoned explanation that was acceptable and defensible.

Balancing of interests

The court also found that the arbitrator did not make an error in finding a conflict between article 9 and 10 of the policy and a resulting ambiguity. It noted that the wording of article 9 balanced the parties’ rights under the collective agreement and the principle of just cause, versus article 10’s strict application of zero tolerance. It wasn’t realistic to suggest that the union agreed to a “blanket zero-tolerance collective agreement provision,” the court said.

The court also agreed with the arbitrator’s position that the failure of the manager to review the medical assessment report – that found that worker was safe to return to work – amounted to a failure of HPEO to conduct an investigation prior to discipline, as required by article 9.

As for the arbitrator’s substitution of a three-month suspension, the court found this was reasonable as well. There was no stipulated penalty for a failed drug test other than article 10’s requirement for an initial removal from work and the collective agreement had a provision allowing for an arbitrator to substitute a reasonable and proportionate penalty. Based on previous arbitral awards, the suspension was of a reasonable length, the court said.

The court considered the importance of safety in the context of the offshore industrial workplace, but that was only one factor and wasn’t determinative of the level of discipline, says Keating.

“The court held that the arbitrator’s substitution of a three-month suspension was reasonable, fair, and proportionate,” she says. “And that's the test that’s often applied by arbitrators - whether the discipline imposed was proportionate to the gravity of the offense.”

The court determined that the arbitration decision was reasonable and had no errors, upholding the worker’s three-month suspension.

Review and update policies

With the ambiguity and conflict between the two articles in the drug and alcohol policy, it’s a reminder to employers that they should regularly review and update their own policies, says Keating.

“This is a really complex and constantly evolving area of the law and it's essential that employers - particularly in safety-sensitive work environments - stay up-to-date with changes and updates in the legislation, the case law, or the science relating to drug and alcohol testing, and adjust their policies accordingly,” she says. “In particular, any provisions that set out the consequences for a violation of the policy are often reviewed with heavy scrutiny by an arbitrator, so I think it's important to consider the provisions in context of each other and determine that there are no inconsistencies, conflicts, or ambiguities between them.”

It's also important to strictly follow a policy, as any straying from the outlined procedure will create that ambiguity for which arbitrators are looking, adds Keating.

“Supervisors and managers or other employees who will be enforcing or applying the drug and alcohol policy should be provided with adequate training and be encouraged to strictly comply with any procedural steps outlined in the policy - that might be conducting an investigation before making a disciplinary decision or any other procedural steps that are outlined in the policy,” she says.

See Hibernia Platform Employers’ Organization v. Unifor (Local 2121), 2023 NLSC 144.